Reference number: 289/2008
Date of Approval: 22/9/2008
Publication BOE: 20081031 :
Chamber: Chamber Two.
Registration number: 5715-2007/
Type of appeal: Appeal for protection of fundamental rights
TEXT OF THE DECISION
The appeal lodged by Emilio Fariña Bóveda in a case of an offence against public health in Judgment of the Second Chamber of the Supreme Court, of 4 May 2007, dismissing the cassation appeal lodged against the Judgment of the Criminal Chamber of the National court, Section four of 27 June 2006, finding him guilty of an offence of public health.
1. In a brief submitted on 25 June 2007 the Court Agent (Procurador) Luis Alfaro Rodríguez, acting on behalf and in the name of Emilio Fariña Bóveda, lodged a review appeal against the Judgment of the Criminal Chamber of the National Court, Section Four, of 27 June 2006 and against the Judgment of the Second Chamber of the Supreme Court of 4 May 2007 confirming the judgment delivered in cassation.
2. The facts of this review appeal are briefly as follows:
a) In a Judgment of the Criminal Chamber of the National Court, Section Four, of 27 June 2006, a total of eleven accused parties were found guilty of an offence against public health one of whom was the appellant in this case, who was sentenced to 14 years’ prison, and disqualification from holding any public office in addition to a fine of 200 million euros, as well as being ordered to pay one twelfth of the costs of the proceedings.
b) Cassation appeals were lodged against this judgment by several of the accused and concerning this case in question including the appellant herein, Emilio Fariña, alleging as grounds for cassation:
Contravention of the Law, pursuant to art. 5.4 of the Organic Law on the Judiciary (OLJ), due to violation of the right to presumption of innocence (art. 24.2 CE).
Infringement of the Law, pursuant to art. 849.1 of the Law on Criminal Procedure (LCP) for failure to determine the facts in an alternative manner as attempted offence, pursuant to article 373 of the Penal Code (PC) or as accomplice. Three: Infringement of the Law pursuant to article 849.1 LCrimP, due to unwarranted application of art. 370 PC, as the requirements of aggravating circumstances as described in that precept were not present.
c) Having substantiated the proceedings, the Second Chamber of the Supreme Court issued a Judgment on 4 May 2007, dismissing the aforementioned cassation appeal, thus confirming the judgment of instance.
d) Having been notified of the Cassation judgment, the same party lodged the appeal in this case.
3. The appeal for declaration of fundamental rights commences by stating three different complaint sections, based on the fundamental rights allegedly infringed by the appealed Judgments; 1) the infringement of the right to confidentiality and inviolability of communications (art. 18 SC), in respect of the fundamental right to a public trial with all guarantees, (art. 24.2 CE), the right to defence-effective judicial protection - (art. 24.1 SC), presumption of innocence (art. 24.2 SC) and the right to trial without undue delay (art. 24.2 SC); 2) In an exclusive manner, the alleged infringement of the fundamental right to presumption of innocence (art. 24.2 SC), and 3) Presumed infringement of the fundamental right to effective judicial protection, on the point of the right for judgments to be duly motivated (art. 24.1 SC, in relation to art. 120.3 SC).
Nevertheless, through this channel, in addressing the explanation of facts and subsequent legal arguments, the application for protection is restricted to developing just one of the complaints described, namely the alleged violation of the right to presumption of innocence (art. 24.2 SC), omitting all consideration of the others. Thus, the appellant maintains that he was sentenced without incriminating or direct or presumptive evidence, as the fact of having participated in trips and meetings with some of the accused is not sufficient, and at no time were telephone conversations recorded which could be in any way related with the drugs haul seized at sea. The Judgment maintains that it has confined itself to simply accepting reports of the U.S. Drug Enforcement Administration (DEA) which mentions a certain "Emilio", with no further detail, the authors of which were not called to declare in the oral hearing nor were those reports given the pertinent reading in the hearing, in order to include them as documented evidence. Furthermore, the house searches carried out in the case of the other accused did not give rise to any link between them and the appellant, and in investigations, in the search made on his own home, nothing incriminating was discovered, given that the napkin found with alphanumeric codes written on it was not linked to the vessel transporting the apprehended drugs. In short, he insists that the National Court has found him guilty without evidence, merely on the basis of conjecture, which in no way proved his participation in the concrete fact imputed to him, and that therefore his innocent status continued to be unassailable, and pursuant to art. 24.2 CE, the violation of that status was not remedied in the appeal to the Second Chamber of the Supreme Court.
II. Legal Findings
- We are required to declare on the admission to proceedings of the appeal lodged, for which purpose it is necessary to ensure that the requirements established in art. 50.1 of the Organic Law of this Court are fulfilled according to the wording given to this precept by Organic Law 6/2007 of 24 May. In this respect it should be borne in mind, as indicated in the explanation of grounds in the aforementioned Organic Law 6/2007, that control of admission formerly based on a system of "evaluated grounds for admission" subsequently becomes "the appellant should allege and attest the fact that the content of the appeal justifies a decision on its substance by the Court on the grounds of its special constitutional relevance given its significance for the interpretation, application or general efficacy of the Constitution" thus in short the new wording brings an inversion of the judgment of admissibility, since "from verifying that there are no grounds of inadmissibility, to verification of the existence of a constitutional relevance in the appeal for fundamental rights lodged". In this way the examination of admission entails "verifying that the appellant’s allegations provide some evidence of the constitutional relevance of the appeal".
From a literal interpretation of art 50 of the OLTC and similar provisions to which it refers, two main aspects arise which require verification in this formality:
- That the claim complies with the terms of articles 41 to 46 of said Organic Law (art. 50.1a) OLCC ) which implies the appellant’s invocation of the infringement of a fundamental right requiring protection according to articles 53.2 and 161.1 b) SC and art. 41 OLCC, namely that it should be due to an action attributable to the public authorities, and in the specific case of a court of justice, as is the case herein, it is also necessary to have exhausted all judicial channels as established in the law [art. 44.1.a) OLCC] and to file a claim against the violation as soon as it had occurred [art. 44.1.c) OLCC], and always having lodged the claim within the established term (in this case within thirty days pursuant to article art. 44.2 OLCC).
b) The claim for protection should comply with the requirements of form and content stipulated in art. 49 OLCC: that is, in the first place, the provision of due grounds for the complaint or complaints lodged [art. 49.1 OLCC in relation to art. 50.1.a)]; secondly, it should express justification for the special constitutional relevance of the appeal [arts. 49.1 in fine and 50.1.a) OLCC], which is a necessary requisite for a preliminary examination of the substance in this same procedure [art. 50.1.b) OLCC]; and finally, that this brief should be accompanied by the documents and copies specified in arts. 49.2 and 3 OLCC.
2. With respect to the innovative requirement of needing to attest to the particular constitutional relevance of the appeal introduced by Organic Law 6/2007, of 24 May we recently stated in Order 188/2008, of 21 June issued by the First Chamber of this Court, LF 1, that it is an inevitable requirement imposed by art. 49.1 in fine OLCC, the substantive nature of which is reflected in the expression “in any case” used in the precept. However, although essential, it is not sufficient to mention this legal expression in the claim for protection of fundamental rights, dedicating a specific argumentation to this, as having verified its existence, the next step will be that “the Court shall proceed to address the criteria indicated in art. 50.1 b) OLCC on whether, once the appellant has fulfilled the requirement, the appeal for protection does effectively demonstrate a particular constitutional relevance which would justify a Constitutional Court decision on the issue".
It is, moreover, a requirement which should not be confused with the actual grounds of the constitutional violation alleged, so that the “burden of justifying the special constitutional relevance of the appeal for protection of fundamental rights is somewhat different from arguing the existence of infringement of a fundamental right through the contested decision". This latter, even before the reform of the Organic Law of the Constitutional Court, implied and continues to imply today "an essential requirement in any appeal for protection of fundamental rights and this requirement is referred to in section one of art. 49.1 OLCC when it establishes as content of the claim, the clear and concise explanation of the facts forming the basis of the claim and referral to the constitutional precepts which it is deemed have been infringed, establishing precisely the protection sought in order to preserve or to re-establish the right or freedom it deems to be violated" (OCC 188/2008, of 21 July, LF 2). This, we maintain, is different from having to expressly justify the special constitutional relevance of the appeal “without it being the task of this Court to officially reconstruct the claim when the appellant fails to comply with the burden of arguments for which he/she is responsible in order to justify that special constitutional relevance which, in his/her opinion, is pertinent to the protection of rights appeal lodged " (OCC 188/2008, of 21 July, LF 2).
3. It is also necessary to consider the fact that non compliance with the requirement to which we refer herein affects the claim for protection, in that it entails a defect which means that it is inadmissible from the outset.
The nature and function fulfilled by the requirement established in the final paragraph of art. 49.1 OLCC prevents any consideration of the lack of justification for the specific constitutional relevance of the appeal, as within the cases of possible remediableness contained in art. 49.4 OLCC. In this respect the Constitutional Court “has reiterated on numerous occasions the importance of the claim for protection of rights as the guiding document for characterising, defining and circumscribing the claim, therefore the decision on the appeal for protection of human rights (for all references see JCC 7/2008, of 21 January, LF 1). In respect of this, on one hand, and with reference to the requirements of accuracy and clarity contained in the first paragraph of art. 49.1 OLCC, attention has been drawn to the fact that these are not mere formalities since they are justified by the need to "provide the necessary elements for formulating the opinion which is the task of this Court” (STC 82/1995, of 5 June, LF 5); and furthermore, it has been pointed out several times that this Court cannot be required to integrate the defective arguments of the claim for protection (for all references see JCC 143/1994, of 9 May, LF 5), 'as whomsoever seeks constitutional protection not only has to open up the channel through which this Court may declare on the alleged violations of the Constitution, but it must also provide the factual and legal grounds which may be reasonably expected and which are part of the duty of collaborating with the constitutional jurisdiction, without it corresponding to this Court to supply the reasoning of the parties, or to reconstruct the claim officially when the claimant has failed to provide evidence of the arguments behind the claim" (JCC 76/2007, of 16 April, LF 5)" (OCC 188/2008, of 21 July, LF 3).
Therefore, since this is an obligatory requirement in that it is a “requirement of the substantive system, the clear and precise compliance with which is linked to optimum overall organisation of the appeal for protection of fundamental rights resulting from the reform introduced by the Organic Law 6/2007" (OCC 188/2008, of 21 July, LF 3), the failure to justify the specific constitutional relevance of the appeal leads to an irremediable defect of the claim which prevents any remedial proceedings to be initiated pursuant to art. 49.4 OLCC or any remedy made on the appellant’s own initiative. “To assume the contrary would furthermore, be a failure to realise that lodging an appeal for protection of fundamental rights is subject to compulsory terms of expiry which may not be reopened in order to comply with a requirement which directly affects the determination of the claim lodged in the appeal" (OCC 188/2008, of 21 July, LF 3).
The remediableness contained in art. 49.4 OLCC is connected more to omissions such as the failure to submit documents or the consignation of specific data in the protection claim, however “it is not possible to extend to this the content of allegations which confirm that claim, because they consist of material substrate and this would hinder the general principles of the proceedings and the guarantees of its legal validity, which would be seriously damaged if there were any possibility that the arguments which would necessarily lead to admission to proceedings could be introduced ex novo subsequent to the submission of the claim. And more so in this particular appeal for protection, given the significance and purpose conferred by the new legal regulation, the most distinctive feature of which is the need for there to be a "specific constitutional relevance" in the case proposed, sufficient for this Court to address the matter"(OCC 188/2008, of 21 July, LF 3).
4. Having established the foregoing, when beginning to examine the claim submitted here it was noted firstly, and as we have mentioned in the facts section of this Order above, that of all the fundamental rights invoked as violated in that brief, only one of the complaints is supported by arguments, namely that relating to the alleged infringement of the right to presumption of innocence (art. 24.2 CE). From the outset this prevents any consideration that the other arguments may be deduced subject to carrying out an official reconstruction of the claim for protection of fundamental rights which is not our remit, as explained in the legal finding above.
Having confined the appellant’s claim for protection therefore to the complaint of the inexistence of evidence against him, an insuperable obstacle immediately appears in that there is absolutely no mention in the brief of complaint of the requirement for specific constitutional relevance of the appeal lodged (art. 49.1 in fine OLCC), in any of the three areas indicated by the law (importance for the interpretation, application or general efficacy of the Constitution): [art. 50.1.b) OLCC], none of which were alleged.
This represents, as stated, an irremediable obstacle which inevitably leads to the inadmissibility of the appeal lodged [art. 50.1.a) OLCC], thus preventing a preliminary study for the purpose of admitting the appeal, not only of the material requirements, and not only the formal aspects of the aforementioned requirement of specific relevance, but also the actual constitutional content of the complaint, arising from, having already rejected said admission, we reiterate, the absence of said requirement.
As a result of the foregoing, the Chamber hereby
That this appeal for protection of human rights shall not be admitted .
This Order shall be published in Official State Gazette ( "Boletín Oficial del Estado").
Madrid, twenty second of September of two thousand and eight -Guillermo Jiménez Sánchez. -Vicente Conde Martín de Hijas. Elisa Pérez Vera.-Eugeni Gay Montalvo.-Ramón
Rodríguez Arribas.-Pascual Sala Sánchez.- signed and marked.
Dissenting vote of Senior Judge Eugeni Gay Montalvo with respect to the Order issued by the Second Chamber of this Court issued in appeal number 5715-2007
With all due respect for the majority opinion reflected in this Order and in accordance with the contrary opinion that I defended in the deliberation of this issue, I feel obliged to exercise the power invested in me pursuant to article art. 90.2 OLCC in order to make my opinion and my position clear on this question.
1. I consider it appropriate to begin by recalling that the Spanish Constitution perceives human dignity to be a fundamental legal right (art. 10.1), "the heart or foundation of the rights inherent therein" and therefore inviolate (JCC 53/1985, of 11 April, LF 3). By raising personal dignity to a fundamental legal value the Constitution is aligned with our neighbouring countries and thus as JCC 25/1981, of 14 July, LF 5, recalls "similar statements are found in comparative law, and on an international plane, the same idea is expressed in the Universal Declaration of Human Rights (preamble paragraph 1) and in the European Convention for the protection of human rights and fundamental freedoms of the Council of Europe (preamble, paragraph. 4)".
It is within this general context that protective jurisdiction should be set, that which the SC perceives as a mechanism for repairing fundamental rights. In effect, in accordance with article 53.2 SC, any citizen may claim the protection of rights and freedoms (recognised in articles 14 to 29 of the Constitution) "before the ordinary courts through a procedure based on the principles of preference and brevity and if appropriate, through an appeal for protection before the Constitutional Court”. Article 41 OLCC, in turn, states that such rights "shall be subject to constitutional protection” And in conformance with the foregoing, section 3 of this article specifies that the claims that may be valid in an appeal for protection of human rights are those "those aimed at re-establishing and conserving rights and freedoms for which the appeal was lodged". These claims should be resolved in principle by ordinary jurisdiction, as fundamental rights and freedoms involve the whole legal system, and only "if appropriate" the Constitutional Court by means of appeal for protection.
Thus the essential purpose of an appeal for protection is the “reparation of violations of human rights and fundamental freedoms, specifically those claimed by the appellants" as we have indicated on numerous occasions (JCCC 167/1986, 193/1987, 93/1990 and 363/1993, 78/1997, LF 2, among others) since, from our first Judgment, JCC 1/1981, of 26 January, LF 2, we stated that the "essential purpose of the protection appeal is that protection itself, by the Constitutional court, of the rights and freedoms which we have mentioned when the ordinary channels for that protection have proved unsatisfactory”.".
It is true, JCC 1/1981, LF 2 continues- that "alongside this designation established in article 53.2, the Constitution also has a defensive objective, in which the action of protection serves a purpose that transcends the singular one. For this purpose the Constitutional Court acts as a supreme interpreter (art. 1 OLCC), so that its interpretation of constitutional precepts, that is, the definition of the rule, is imposed on all public authorities". However, this purpose of the protection of rights appeal - known as its objective-result function, in my opinion is a consequence of the nature of a "higher jurisdictional body” which in matters of guaranteeing fundamental rights of the Constitution recognises our Court (art. 123.1).
In short, according to constitutional and procedural design, the essential function of the protection appeal consists unequivocally of protecting subjective rights. The appeal, as I stated at the start “is usable 'if appropriate’ for the protection of those rights when the citizen seeking justice considers that reparation of such rights has not been made through ordinary jurisdiction. Thus, it is possible to understand the reference of different Courts, ordinary on one hand and constitutional on the other " (JCC 113/1995, of 6 July, LF 6).
2. Organic Law 6/2007, of 24 May proceeded to reform the regulations covering the appeal for protection of rights, introducing, and which is of interest to us here, three innovations namely a) a new configuration of the appeal admission procedure, b) the capacity of the Sections to resolve the issue and c) reform of the formality for internal questions of constitutionality established in art. 55.2 of the Organic Law 2/1979, of 3 October.
This Order places us directly in opposition to the first of the amendments indicated, that is, the new regulation of the admission to appeal which obeys among other motives the need caused by the “growth in the number of appeals for protection of rights and the “fact of the tardiness of the procedures in this High Court” as is substantially argued in the explanation of grounds of the Law. That is, in short, due to problems and requirements "deriving from the operation and organisation of the Constitutional Court” (paragraph II).
The amendment is undoubtedly substantial, aimed at mitigating the effect of these shortcomings. Therefore, firstly part of the logic of the law is to attempt to ensure that it is the ordinary courts who will in the final instance resolve violations of fundamental rights as the Constitution demands. As a result, the Law has a established a new – wider –regulation of the incident of invalidation of action according to art. 241.1 of the Organic Law of the Judiciary (OLJ) which unquestionably permits a final compromise of ordinary jurisdiction with the obligation to protect and make effective fundamental rights.
As I shall come to later, the amendment introduced by the reform of the OLCC in respect of the appeal for protection cannot exclusively specify an objectification thereof, as our case law, as we have already mentioned, clearly recognised from the outset. The objectification referred to in the law is the observance of a reasoning through which constitutional interest is justified beyond a mere complaint.
In the light of this reform perhaps it might be considered that the comments made in the preceding paragraphs are superfluous, however, it should be stated that legislation has opted in favour of an objective perception of the appeal for protection of rights, considering as such the determination of the content of fundamental rights and the establishment of a case law and theory to be subsequently applied by ordinary Judges and Courts, in detriment to a subjective perception of the appeal for protection of fundamental rights. Nevertheless, aside from the academic debate raised by the perception of what constitutional protection actually entails, I consider it important, and increasingly so in the present climate, to reaffirm the essential purpose accorded to the appeal for protection of fundamental rights by our case law and the Constitution, which is none other than reparation of violation of rights and fundamental freedoms suffered by the appellants, to the point of excluding the possibility of lodging an appeal for protection when its purpose is not the protection of a right.
I wish to point out in any case, that my disagreement is not with the law itself, which is laudable in its intention and the necessary approval of which in our system was essential, but rather the interpretation which, from the wording of the new draft of arts. 49.1 in fine and 50.1 b) OLCC, contained in this Order, and by extension, the previous Order 188/2008, approved by the First Chamber on 21 July. As a result, this interpretation transfers to the appellant seeking protection the formal obligation (without possible remedy) to argue (that is to justify) the existence of the specific constitutional relevance of their claim.
Furthermore, the interpretation of the Second Chamber (and previously the First Chamber) of this Court has been that the new wording of articles 49 and 50 OLCC should be based largely on the explanation of grounds of the Law, and which it continues to follow closely and the expressions of which it quotes, at times literally. For this reason it is useful to emphasise in this respect the merely interpretative rather than normative value of preambles and explanations of grounds (including JCC 36/1981, of 12 November, LF 7, and 222/2006, of 6 July, LF 8) and that in the same way, we have also indicated that the interpretative value of the preamble is subject to limitations. To the extent that the interpretation of a case is precluded from both having recourse to preambles and explanations of grounds in order to disconnect from unequivocal legal precepts (JCC 212/1996, of 19 December LF 15) and also from using them as the basis for an interpretation of the articles which enter into conflict with the Constitution (art. 9.1 EC; JCC 36/1981, of 12 November, LF 7).
I ask myself in fact whether for reasons of work load or organisation of the work of the Constitutional Court -main cause according to the explanation of grounds, of this legislative reform we may eventually, if such an interpretation is followed, neglect the serious function which in matters of protection of human rights, it is our duty to fulfil.
3. On every occasion possible I have indicated the appropriateness of advocating to the Plenary Session an examination of this question in order to jointly debate the indeterminate legal concept of "specific constitutional relevance of the appeal of protection of fundamental rights” of article. 49.1 in fine of the Law. .
An actual reading of the Organic Law of the Constitutional Court shows that verification of the circumstances of that special constitutional relevance in the case in question constitutes a judgment which should be made by the Senior Judges of the Constitutional Court, interpreting and specifying the three criteria established in art. 50.1 b) OLCC: a) importance for the interpretation of the Constitution; b) for its efficacy and general application and c) for the delimitation of the scope and content of fundamental rights in which the former represents the hermeneutic and theoretical value, the second the reparatory value (which therefore, requires a subjective control) and the final, the case law value. Not for nothing does the law mention these criteria in an article destined for the Senior Judges who make up the Court, or rather the Sections, however under no circumstances is it the Appellant.
Legal finding 2 of the Order against which I respectfully lodge my dissenting Vote states that art. 49.1 in fine OLCC requires that the claim for protection of rights should contain an express reasoning –not a mere mention –of the existence of the special constitutional relevance of the appeal. However, it is clear that it is also possible that there could be said to be justification of special significance deriving unquestionably from the facts and from the legal arguments put forward by the appellant. Despite the fact that In this case it would not be an express justification it could nonetheless scarcely be qualified as insufficient, in accordance with the legal text, particularly when the special constitutional transcendence of an appeal is a notion, the content of which still needs to be specified by the Court.
As those of us called to do so have not yet made this particular specification, the appellant can hardly be expected, in accordance with art. 53.2 CE, to attest to the existence of a requirement, the content of which he is unaware of, with all the burden of legal insecurity that this entails. Similarly it is required that the party carry out an operation of legal creation ex novo, which ultimately produces an inversion of the duties of those who should be judging and those who should defend the rights of individuals who have entrusted to them their defence.
4. Another ground for my dissent in respect of the present Order refers to the interpretation made of the new precepts and their ramifications.
The new article 49.1 OLCC adds to the requirements which must be legally fulfilled in the claim for protection – the clear and precise explanation of the facts on which it is based, the citation of constitutional precepts deemed to be infringed, the precise definition of the protection sought –the justification of the “special constitutional significance”. According to the Order with which I diverge, this new requirement is of a substantive nature. In order to provide support for this statement it is argued that this “is reflected in the expression "in any case” used in the precept” (LF 2). Furthermore, the Order refers to that adopted by the First Chamber (Auto 188/2008, of 21 July) which contains identical statements.
Legal finding 3 of the Order indicates that the failure to justify the special constitutional relevance of the appeal "invalidates the claim for protection due to an irremediable defect which leads to its inadmissibility a limine". Thus it is deduced -it goes on to add- from the "actual nature of the function which fulfils the established requirement"; a nature, which as indicated, the Order has defined as substantive. In order to reinforce the impossibility of remedying the lack of justification of the constitutional significance, the Order recalls the case law that this Court has delivered in respect of the requirements contained in the former art. 49.1 OLCC. In effect, we have stated on numerous occasions that the legal requirements to be fulfilled in filing a claim for protection of fundamental rights are not mere formalities but are in fact essential, and therefore cannot be remedied, in that insofar as they provide the elements necessary to hear the specific petitum or claim lodged, For this reason this Court has considered that the essential “procedural burden” of specifying all the factual and legal elements required for the Court to deliver a constitutional opinion should fall on the claimant. This burden is part of the “duty to collaborate with the justice of the Constitutional Court without it being the Court’s remit to officially reconstruct claims” (JCC 68/2006, of 13 March, LF 3; OCC 186/2008, of 25 June, LF 5).
This being so we cannot ignore the fact that on numerous occasions and in the light of various circumstances, we have proposed that specific requirements should be interpreted in a flexible manner, or we have defined the object of the appeal for protection without considering that this delimitation presupposes an official reconstruction of the protection appeal (by way of example, JCC 37/2003, of 25 February, LF 2, and 11/2006, of 16 January, LF 2).
Therefore, in this case and given that the Organic Law 6/2007 does not incorporate a period of vacatio legis, I consider that the Constitutional Court in the assumption of its task of protecting fundamental rights should show greater flexibility, at least during the early months of applying the law, in interpreting the new requirement so that the Court may take note, even when the claim does not specifically cite or argue this specific constitutional relevance of a particular appeal, thus respecting our traditional doctrine on the interpretation of formal requirements in total concordance with case law of the European Court of Human Rights.
5. I believe that the interpretation of the Second Chamber (and previously also interpreted as such by the First Chamber) of this Court has possibly led to the new wording of articles 49 and 50 of OLCC being a mere requirement of an autonomous formal condition consisting of the inclusion in the protection appeal of a section concerning justification of the special constitutional relevance of the appeal. Furthermore, the consequence associated with the lack of this formal requirement is radically significant, as it may lead to the inadmissibility of an appeal for protection, even in the event that the claim was a genuine violation which moreover, had special constitutional significance. In short, this would be an autonomous requirement which would produce what we have called on numerous occasions “an aggravating formality (for all references see JCC 230/2000, of 2 October LF 5). In my opinion this requirement, in addition to the fact that it is not expressly established in the law, would become contradictory to the essence of the appeal for protection, as the constitutional interest of cases can be objectified and, in accordance with the reform of the Law, it is now the task of the Sections (previously entrusted to the Chambers) to evaluate whether, based on its special constitutional significance, the “content of the appeal” justifies a decision on the substance of the case, in accordance with established case law as the Law stipulates. In any case grave damage would be caused to fundamental rights; repairing violations in some cases and leaving others wide open to an uncertain condemnation by the state through accountability. Furthermore, our doctrine in respect of a specific right or freedom cannot be considered to be crystallised on the basis of a particular date or case. In this respect the Organic Law of the Constitutional court has established that for those cases in which what we consider to be consolidated doctrine is applicable, it is possible to transfer hearing of the appeal to the Sections (art. 52.2).and finally, in any cases in which the ordinary courts have not heeded our doctrine, thus infringing the appellant’s fundamental right, reparation for that violation must of necessity be made by the Constitutional Court, pursuant to art. 123.1 CE, subject to a failure to protect the dual reparatory and didactic doctrinal functions inherent to protective jurisdiction.
These are the grounds for my dissenting vote, which I respectfully manifest in Madrid on the twenty second of September two thousand and eight.-Eugeni Gay Montalvo.- Signed and marked.